Johnson v. United States

FERREN, Associate Judge,

concurring in part and dissenting in part:

I join the per curiam opinion except for Part VI.

In finding the evidence sufficient to convict appellant of burglary, the majority ignores the government's failure to establish a crucial element of the crime: that appellant had the specific intent, at the moment he entered Townes’ home, to physically assault her. The majority fails to show how the government’s evidence is sufficiently probative of that intent. Instead, the majority merely cites selective segments of testimony by Townes and her mother and says, summarily, that this testimony shows “other circumstances” sufficient to allow the jury to draw an inference of the required intent. Ante at 898-900. In this way, the majority has blurred the significant distinction between burglary and unlawful entry under our criminal law. Because we have the responsibility, on appellate review, to preserve such distinctions no matter how horrible the facts of a particular case may be, I must respectfully dissent from the court’s opinion affirming appellant’s burglary conviction. I would reverse on that count only and would remand for resentencing.

I.

D.C.Code § 22-1801 (1989) states: “Whoever shall ... break and enter, or enter without breaking, any dwelling ... with intent to ... commit any criminal offense, shall, if any person is in any part of such dwelling[,] ... be guilty of burglary in the first degree.” The element that distinguishes burglary from the misdemeanor of unlawful entry is the specific intent at the time of entry to commit a crime when once inside the dwelling. See D.C.Code § 22-3102 (1989) (unlawful entry). “The gravity attached by the legislature to the additional mental element is reflected in the penalties which follow from a conviction. In the case of burglary, the maximum term of imprisonment is thirty years, sixty times the possible six month period triggered by a conviction for unlawful entry.” Shelton v. United States, 505 A.2d 767, 769 (D.C.1986).

Because of the extreme difference between the penalty for mere unlawful entry and the penalty for burglary (entry plus a specific intent to commit a crime inside), the government — to satisfy its burden of proof under the burglary statute — must show more than just entry and subsequent commission of a crime. See Warrick v. United States, 528 A.2d 438, 442 (D.C.1987); Parker v. United States, 449 A.2d 1076, 1077 (D.C.1982); see also United States v. Jeffries, 45 F.R.D. 110, 112 (D.D.C.1968) (crucial element of burglary “is the specific intent which impelled the entry and not the lawful or unlawful manner of entry”). Put another way, evidence of the subsequent crime by itself does not support a finding of a criminal intent to commit that crime at the time of entry; otherwise, any time the government proved that a defendant committed a crime after *902 entry, the defendant would automatically be guilty of burglary as well as the subsequent offense. See Shelton, 505 A.2d 767, 770-71 (event leading to inference of criminal guilt did not occur until after entry and thus insufficient to prove burglary); W. LaFave & A. Scott, 2 Substantive CRIMINAL Law § 8.13(e) at 473 (1986) (“If the actor when he was breaking and entering only intended to commit a simple trespass, he was not guilty of a burglary even though he in fact committed a felony after entering.”).

The government, therefore, must “prove beyond a reasonable doubt that the defendant entered the premises having already formed an intent to commit a crime therein.” Warrick, 528 A.2d at 442 . “Unauthorized presence in another’s premises does not alone support an inference of criminal purpose at the time of entry; but when the unauthorized presence is aided by other circumstances, such an inference may be drawn.” Id.; see Douglas v. United States, 570 A.2d 772, 776 (D.C.1990). To prove burglary, therefore, the government’s “other circumstances,” Warrick, 528 A.2d at 442 , must reasonably show that appellant’s entry into Townes’ home was a deliberate step in the commission of a crime — in this case, physical assault. See II Model Penal Code and Commentaries § 221.1 at 63; W. LaFave & A. Scott, Handbook on Criminal Law § 96 at 715 (1972). The circumstantial evidence of appellant’s intent must be that “which might lead reasonable people, based upon their common experience, to conclude beyond a reasonable doubt that appellant intended to commit some crime upon the premises.” Shelton v. United States, 505 A.2d at 770 . If the government’s evidence allowed a reasonable juror to find beyond a reasonable doubt that appellant had the specific intent at the time of entry to assault Townes, we must affirm his conviction of burglary.

II.

“Other circumstances” giving rise to a reasonable inference of the necessary criminal intent include, for example, a forced entry and “unexplained presence in a darkened house,” concealment while carrying criminal instruments, forced entry after breaking a window, or presence in a ransacked building. Massey v. United States, 320 A.2d 296, 299 (D.C.1974) (citing and quoting from cases). The government’s mere recitation of circumstances surrounding entry is insufficient, however, if such circumstances are not probative of the defendant’s state of mind at the time of entry. This is the majority’s analytical failure in this case: it does not critically examine the probative value of the “other circumstances” it lists with respect to appellant’s state of mind, not hours or days before the incident, but at the moment he entered the home. See ante at 899-900. The majority’s approach thus greatly reduces the government’s statutory burden of proving specific intent and is contrary to our approach in previous cases.

In Warrick , for example, the defendant entered a home without permission and subsequently stabbed the owner in the neck with a knife. Although we agreed with the government that there was enough evidence to infer the defendant entered the home while armed with a dangerous weapon, and that the evidence “might support an inference that he intended to use the weapon if somebody attempted to interfere with his taking of property,” we concluded that a burglary conviction “may not rest on such an ‘if’.” Warrick, 528 A.2d at 442 & n. 4 (emphasis in original). Similarly, in a case where the evidence showed that two defendants engaged in surreptitious behavior before breaking into a basement and then left without taking anything — according to the government, because there was nothing in the basement “both small and valuable enough to steal” — we concluded that the evidence was insufficient to sustain a burglary conviction. North v. United States, 530 A.2d 1161, 1162-63 (D.C.1987).

In the present case, with respect to the intent element, the government argues that the jury could reasonably have inferred that appellant had entered the house either in a jealous rage from which the jury could reasonably find that he had entered with *903 the specific intent to harm Townes or, in the alternative, that appellant had entered with a conditional intent to assault Townes if “his suspicions went unassuaged when he found her.” As we emphasized in War-rick, however, the inference a conditional intent might raise is not enough to sustain a conviction for burglary. Cf. North, 530 A.2d at 1162-63 (government’s conditional inference that if something of value had been inside dwelling defendants would have committed theft insufficient to satisfy specific intent requirement of burglary). I therefore focus on the government’s “jealous rage” theory.

A careful review of the evidence at trial leads me to conclude that a reasonable juror would have had to have a reasonable doubt that appellant entered Townes’ home with a specific intent to assault her. The evidence showed that appellant and Townes had engaged in a “love-hate relationship” over a five or six year period. Townes testified that appellant had been in her house on “many, many occasions.” Townes’ mother, Ms. DaSilva, testified that on a few of those occasions appellant had carried Townes out of the house “in a headlock,” “kicking and screaming.” Although Townes had attempted to break-up several weeks before the assault, she testified that she had had consensual sex with appellant seven to ten days before the assault.

On January 27, 1988, appellant called Townes and asked to see her. She agreed to see him at her house the next day. Sometime around 1:30 a.m. on January 28, appellant called for Townes, but DaSilva answered the phone and hung up on him. DaSilva testified that appellant then called again and again and that each time she refused to let him speak to Townes and hung up. DaSilva stated that during at least one of these calls appellant used profanity. Appellant’s profanity, however, was directed toward DaSilva, not Townes. About a half an hour after the last phone call, DaSilva heard appellant knocking on the front door and calling out Townes’ name. Both DaSilva and Townes ignored appellant, and he soon left. Later, DaSilva heard another knock on the door and looked out the window and saw appellant’s van. Appellant returned to his van and blew his horn for “quite awhile” before leaving again. After DaSilva had left for work at about 8:30 a.m., appellant returned in accordance with the meeting time he and Townes had agreed upon the previous day. When no one answered — according to Townes’ testimony — appellant called out her name and continued knocking on doors. When no one responded, he entered the house. There was no evidence of a forced or hostile entry. But there was evidence that appellant had entered the home many times before and that Townes’ had told appellant a pane of glass missing from the back door allowed easy entry. Upon entering the house, appellant walked up the stairs and into Townes’ bedroom.

After appellant entered the room and saw Townes in the closet, he hugged her, gave her one kiss, and told her that he missed her. Townes did not testify — and there is no evidence to suggest — that appellant’s hug and kiss and initial statement constituted or suggested assaultive behavior in any way. Shortly after appellant told Townes that he missed her, he asked her where she had been. When she responded that she had not been anywhere, he told her that she was lying. According to Townes’ testimony, at that point she began yelling at appellant and demanded that he leave. Appellant did not respond at first. He then asked her again where she had been and accused her of lying. It was only after they had been arguing that appellant struck and assaulted Townes.

The government’s theory is that appellant entered the house in a jealous rage because: (1) Appellant and Townes had a love-hate relationship which Townes had attempted to end several weeks earlier; (2) Townes (and her mother) had refused to talk to or see him earlier that morning despite his repeated attempts; and (3) Townes did not let him in when he knocked on her door and called out her name at 8:30 a.m. From these circumstances the government asked the jury to infer that appellant had become enraged by the time he entered the house and had entered for the *904 purpose of assaulting Townes. The government’s conclusion that appellant had intended to assault Townes from the moment he entered is therefore based on inferences drawn from the status of appellant’s relationship with Townes on January 28, 1988 and the turbulent history of their relationship, from appellant’s failed attempts to see or talk to Townes earlier in the morning, and from appellant’s entering the house after no one answered the door.

Although it would be reasonable to infer that appellant was frustrated at the time he entered and that he very much wanted to speak to Townes, the government’s evidence permits only speculation about whether appellant had already formed the criminal intent for assault at the time he entered the house. There was no evidence, for example, that appellant had threatened Townes during his attempts to contact her earlier in the morning, that he had called out to Townes in a threatening manner before or just after his entry, or that he had wanted to do anything more than question her about where she had been or patch-up things between them. The majority states, however — without any reference to the evidence — that “[tjhe jury also heard how the victim [Townes] refused to answer his knock on her door later that morning and could infer that such behavior angered appellant.” Ante at 900. If the majority is referring to appellant’s knock on the door around 8:30 in the morning, then it is simply wrong. There was absolutely no evidence from which to infer that appellant was “angry” when no one answered the door for him at 8:30, the appointed time for their meeting. The majority has confused reasonable inference with sheer speculation.

Furthermore, according to Townes’ testimony, before the assault appellant did not question her about that morning’s events or about why she would not talk to or see him, and there was no evidence that appellant even knew for sure that Townes was in the house at the time he entered. Thus, there was no evidence linking appellant’s earlier behavior — critical to the government’s jealous rage theory — to appellant’s purpose for later entering the house. Compare Williams v. United States, 549 A.2d 328 (D.C.1988) (reasonable inference that appellant at time of entry intended to commit larceny based on evidence that appellant had entered same dwelling a week before and had committed larceny); Douglas, 570 A.2d at 776 (evidence that defendants cased store and remained in vicinity for over an hour before breaking-in sufficient to show intent to commit crime at time of entry); Edelen v. United States, 560 A.2d 527 (D.C.1989) (appellant who pulled gun and told complainant to open door of her apartment and thereafter raped her guilty of burglary in first degree); Parker, 449 A.2d at 1077 (evidence of defendant’s pattern of theft sufficient for jury reasonably to infer intent to steal at time of entry).

It was only after some time had passed, an argument had ensued, and Townes had demanded that appellant leave that appellant committed the atrocious acts for which he was justly convicted. Although I agree with the implication of the majority’s analysis that appellant’s first acts upon seeing Townes after his entry, a hug and a kiss, are not ipso facto always a sign of affection and that in some circumstances a hug and a kiss could constitute a sexual assault, see ante at 899-900, 900, Townes’ testimony was that appellant did not assault her until after the hug and kiss and the argument. As the majority recognizes, it was only after the hug and kiss, and in response to Townes’ insistence that he leave, that appellant struck her in the face. See ante at 899. The government, therefore, presented no evidence that appellant’s hug and kiss — his first acts upon seeing Townes — constituted assaultive behavior or indicated “jealous rage.”

In summary, I do not see how any of the “other circumstances” the majority catalogs are probative of appellant’s intent at the time he entered the home. 1 The cir *905 cumstantial evidence only showed that appellant and Townes had been in a sometimes violent relationship, that appellant had been upset earlier that morning, that he returned to speak with Townes at their previously arranged meeting time, and that he entered the premises after no one answered the door. The “hostile” behavior and “anger” from which the majority says the jury could properly have inferred intent to assault, see ante at 899-900, arose hours before appellant’s entry, were directed primarily at Townes’ mother, were not accompanied by any threats, and were followed by acts immediately before and after his entrance (first knocking on the door and calling out Townes’ name and then hugging and kissing Townes’ and telling her that he missed her) which tended to show appellant did not possess an assaultive intent when he entered. Although appellant’s subsequent acts were criminal and reprehensible, there was no evidence appellant entered the home with the specific intent to undertake them; rather, the evidence showed those acts were triggered by events that took place after appellant had already entered the home.

III.

The majority correctly recites the law of burglary in this jurisdiction, emphasizing that when unauthorized presence “is aided by other circumstances such an inference [of criminal purpose at the time of entry] may be drawn.” Ante at 899 (citing Warrick, 528 A.2d at 442 (emphasis and brackets in majority opinion)). The two primary cases on which both the majority and I rely (Warrick and Shelton) make clear, however, that the government must do more than simply introduce into evidence all circumstances surrounding an unauthorized entry. In those two cases, the “other circumstances” cited by the government did not reasonably indicate an intent to commit a crime at the time of entry. Warrick, 528 A.2d at 442-43 ; Shelton, 505 A.2d at 770-71 . Similarly, the “other circumstances” the majority cites do not reasonably show, beyond a reasonable doubt, that appellant intended, at the time of entry, to assault Townes. The majority in effect jettisons our caselaw and expands the criminal offense of burglary to make it indistinguishable from the lesser crime of illegal entry in a case such as this where appellant, subsequent to entry, committed a violent crime.

“The case for an independent burglary offense must rest on the gains that are perceived from aggravated grading of offenses that under ordinary circumstances would be punished adequately by other provisions of the Code.” II Model Penal Code and Commentaries § 221.1 at 66. Without question, appellant is being “punished adequately” based on his convictions for armed rape and malicious disfigurement. Because the statutory punishment for burglary “is usually far greater than for most of the offenses which might actually be committed within the [dwelling],” this court should not seek to expand the scope of the crime of burglary, no matter how terrible the particular facts of a given case. W. LaFave & A. Scott, supra, at 716. 2

*906 I conclude, as this court did in Warrick and Shelton , that the government’s evidence of appellant’s specific intent at the time of entry required the jury “to cross the bounds of permissible inference and enter the forbidden territory of conjecture and speculation” and therefore was insufficient as a matter of law to convict appellant of the burglary charge. Shelton, 505 A.2d at 771 ; see Warrick, 528 A.2d at 442-43 . Respectively, therefore, I dissent: the evidence was insufficient to convict appellant of burglary.

. Because my two colleagues conclude otherwise, I believe it is necessary to point out briefly other problems with their analysis of the evidence. First, I do not see the probative value of appellant’s familiarity with the time Townes’ mother left for work each morning. See ante at *905 899. Additionally, the majority states that appellant "poked [Townes] again and again with a sharp object” before he burned her with the iron. Id. at 899. There was not, however, any reliable evidence that appellant had a sharp object, and the medical evidence revealed nothing to indicate appellant had used a sharp object in the assault. Although the indictment alleged that appellant committed burglary by entering the dwelling armed with a knife, on cross-examination Townes admitted that she never saw a knife. In fact, the trial court granted appellant’s motion for judgment of acquittal on an armed assault with a knife charge, concluding that "the jury would have to speculate" that appellant had a knife in his possession. Finally, there simply was no evidence that appellant engaged in "hostile” or assaultive behavior directed toward Townes either before or during his entry of Townes’ home, see id. at 900, or that his unauthorized presence was by forced entry.

. Although I am in complete accord with the majority's policy goal of combatting domestic violence, see ante at 900, I do not see, and the majority fails to explain, how our awareness of and sensitivity to that chronic problem are relevant to the particular point in dispute: the specific intent requirement of burglary. As I note above, appellant has been sentenced appropriately for his crimes of sexual assault and violence.